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          Note: These comments are based entirely on the brief
          submitted to the Florida Supreme Court (Case 89.511) by
          Michael Bowen et al. in May 1997. Although the appeal
          was denied, the factual foundation is accepted as valid.

The Law and the Sciences both search for the elusive truth, each in their own
way, but the goal is the same – to determine the truth and take whatever action
appropriate after the truth is determined. The legal profession relies more and
more on the scientific evidence to help it arrive at the truth, and places great
emphasis on the findings of a “scientist” witness. When that scientist uses a bad
method or has conclusions not based of facts, a fact finder accepts a false
assumption of correctness and the deliberation can be wrong, as it was in this

This is a question of whether Sanchez Velasco (Sanchez) ‘s competency to (1)
waive all his appeals and (2) not waive his appeals at the same time. This
question is a psychological determination clothed to become a legal term, and is
based on a psychological examination, followed by an opinion based on that
psychological examination. For this purpose psychology is considered a
“science”, although some would disagree.

A psychologist’s evaluation is based on both objective an subjective findings; in
this case none of the objective measurements were performed, so any
conclusions were based on responses to questions from the examiner to the
subject. The examiner did not interview any other people.      Considering the
stakes involved, the question of self-serving responses, or responses from a
fuzzy mind must enter the equation.

On the one hand, Sanchez can be attempting to manipulate the psychologist—in
this case to accept that he is competent when he is not. His epigain would be to
be executed as quickly as possible. On the other hand, he could be sufficiently
confused to not know what he wants. A psycho logic examination attempts to
unravel the conflicting messages Sanchez is giving.

1) Sanchez exhibits total frustration with the way his appeal was handled, by the
   state, and his own lawyers and investigators, as well as the Florida Supreme
   Court, which leaned over backwards in allowing the state to ignore one
   deadline after another, the state not submitting its reply brief for thirty-one
   months. He felt, with some justification, that this was a raw deal. If the
   defense did the same thing, it would lose a summary judgment and be
   procedurally barred forever.

2) He further questioned the employ of an appeals lawyer from a state without
   the death penalty, ignorant of Florida appellate procedure, who never litigated
   a criminal let alone a capital case before. However dedicated to his task –
   which according to Sanchez he wasn’t—this created a handicap for Sanchez,
   and made a charade of the appellate process. If the State provides for an
   appeal of right—as Florida does--, it must allow at least adequate
   representation in an adversarial procedure, and not stack the deck on its side.
   It would be similar to a baseball game where one side is never at bat. In
   Sanchez’s appeal, the opposition had all the cards, and Sanchez could not
   put on an even barely adequate argument. His outburst in court was a
   reflection of his frustration, and contradictory to his simultaneous request for a
   quick execution, and conflicting to it.
3) Dr Ruiz, a psychologist, examined Sanchez for about two hours on the
   morning of the hearing. Her biased examination was skewed toward finding
   Sanchez competent, and her methodology grossly deficient.
       a) Her whole examination consisted of an interview with Sanchez.
          She naively accepted his answers as truthful, which was in
          effect part of the ultimate issue, and determined that he was
          competent to make his own decisions, based entirely on his
       b) She totally ignored Sanchez’ previous considerable psychiatric
          history, which is of course material to any determination. As a
          trained psychologist, she should have been aware of the
          necessity of knowing the patient’s past psychological history,
          and      this    approach     is      very    incomprehensible.

          She blithely ignored the telling exchange between the Judge
          and Sanchez the day before, and the clearly psychotic behavior
          Sanchez displayed previously both in Cuba and in Florida
          before any crimes were perpetrated.             Any medical or
          psychological diagnosis must be based on as full a history as is
          obtainable, a premise blatantly not followed in this case, making
          her opinions “junk science”, and offering to the court a tainted
          opinion on which to decide..
       c) She cavalierly ignored the previous evaluations of Drs Herrera
          and White, which stated in part that Sanchez was blessed with
          an extremely abusive childhood: was committed to a psychiatric
          hospital in Cuba where he had electroshock treatment: that he
          suffered a “cracked skull” with severe headaches and amnesia:
          that he sat in the dirt of his backyard and talked to a dog for
          hours: that he suffered severe mental disease and was treated
          intermittently with Thorazine® or other psychotropic drugs..
          Certainly Sanchez did not reveal all this to her.

All of this was pushed aside when at the least, should have prompted an
evidentiary hearing. When expert reports are conflicting, the fact finder should
attempt to reconcile them by hearing the experts’ testimony.       The fact that
Sanchez committed a horrible heinous crime, and then killed two other death row
inmates no doubt influenced the judge’s ruling that Sanchez was competent to
request state sanctioned suicide.

A question of those volunteering for execution is a thorny one. Most jurisdictions
allow a condemned prisoner to knowingly and intelligently waive his appeals and
thereby hasten his execution. The sole criterion is whether the inmate is compos
mentos at the time he makes that decision. The brief submitted by Mssrs Bowen
and Hamilton explores the issue briefly. Florida law allows volunteering for
execution assuming that the inmate is not non-compos mentos, but does not
clearly define what competency means. Surely the state does not want to be an
assister of suicide, since assisted suicide is not legal; yet in passing the death
sentence, it places it self precisely in that position. So a prisoner who volunteers
for execution in effect can achieve the opposite—prolong his life at least
temporarily. A paradox !

Sanchez committed three terrible murders: he has little in terms of mitigation, and
clemency is not a realistic outcome, based on the current regime in Florida.
Even if he is granted a non -competent status, and his appeals are allowed to
proceed, he very well may lose, and be executed. At least that would force the
state to play by the rules it promulgated, and legitimize more the execution.
Conversely, the courts just might reconsider and vacate his three death
sentences, based on his medical history..

Death is different, and given the proposition that there are appeals of right from
a death sentence, the appeals must be based on a legitimate adversarial
procedure, and not a question of going through the empty motions without
substance, or by deliberately presenting a weak argument to placate to law
written law, shoveling smoke instead of a legitimate issues. Even the worst of
the worst deserve their fair day in court.

(7 Sep 2002)

The concept of lunatic is an old one. The Justinian code provided for special
care for someone who lost his mind, and then his reason, but under the Justinian
code, did not necessarily imply a remission of criminal responsibility.

1) In Anglo-Saxon Common Law, which evolved during the twelfth Century and
   after, the concept of dolus (intent) entered into the law, and by 1265 Bracton,
   a legal scholar, introduced the concept of mens rea, or evil intent into the law.
   In dealing with a lunatic, a person lack mind or reason was not far removed
   from a wild beast.
Sir Edward Coke, further legally defined the non compos mentos:

1) An idiot who from his nativity is non compos mentos;
2) He who by sickness grief or other accident loses his memory or
3) A lunatick that hath sometimes his understanding an sometimes not ali
   quando gaudet lucidid intervalis, and therefore is called non compos mentis , he is
   called non compos mentis so long as he hath not understanding;
4) He that by his vicious act for a time depriveth himself of his own memory and
5) In a criminal case, the act of a madman shall not be imputed to him for actus
   non fecit nisi mens sit rea, and amens non sine mente, without his mind or

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